Senate Judiciary Hearing On Google

A committee looks at the possible antitrust practices of Google in the adtech market.

The Senate Judiciary Committee’s Antitrust, Competition Policy & Consumer Rights Subcommittee will hold a hearing on 15 September titled “Stacking the Tech: Has Google Harmed Competition in Online Advertising?.” In their press release announcing the hearing, Chair Mike Lee (R-UT) and Ranking Member Amy Klobuchar (D-MN) asserted:

Google is the dominant player in online advertising, a business that accounts for around 85% of its revenues and which allows it to monetize the data it collects through the products it offers for free. Recent consumer complaints and investigations by law enforcement have raised questions about whether Google has acquired or maintained its market power in online advertising in violation of the antitrust laws. News reports indicate this may also be the centerpiece of a forthcoming antitrust lawsuit from the U.S. Department of Justice. This hearing will examine these allegations and provide a forum to assess the most important antitrust investigation of the 21st century.

Chair Mike Lee (R-UT) said the focus of the hearing is Google’s online advertising business and whether it is monopolist or has engaged in any conduct that harms competition and consumers. He said he would discuss antitrust policy more broadly before discussing Google. Lee remarked he has served on the subcommittee for nine years, six of which as chair, and during this period antitrust policy has evolved and a gulf has widened between the two sides of the issue. He claimed there are those who would like to see no antitrust laws at all, while others are overly deferential to speculative efficiencies, quick to dismiss actual evidence of competitive harm when it might conflict with unproven economic theories. Lee argued this end of the spectrum fetishizes freedom even when harm might endanger freedom. He claimed they forget that markets, like governments, do not keep themselves free, and that liberty s only secure when power is diffused.

Lee said at the other extreme is a line of arguments that has been pushing for years an agenda to transform antitrust laws from a tool based in economic science to protect and promote competitive markets into a panacea for all their perceived social ills. He said built on the myopic economic presence that big is bad, which is, to them, the beginning and end of the question, some at this end of the spectrum would use antitrust policy to address labor, racial, and income disparities. Lee conceded these may be laudable goals, but these are not problems antitrust law is meant to solve nor are they goals antitrust law is capable of solving, at least not without creating a host of other problems. He argued that attempts to repurpose antitrust law into a social justice program would have scores of unintended consequences that would cripple the United States’ (U.S.) economy for generations. He noted there is hypocrisy in thinking big is bad only applies to corporations and not to government bureaucracy, the type needed to dismantle large companies and regulate them.

Lee said he is on the side of the American people, the law, and vigorous enforcement of antitrust laws that have made the U.S. the most prosperous nation on earth. He asserted that already enacted laws are, for the most part, sufficient to meet the challenges of the day. Lee reiterated the maxim that liberty is only secure when power is diffused, a principle central to the U.S.’ Constitutional Republic. Lee claimed the concept of federalism, perhaps the greatest contribution of the founding generation, is what makes the U.S. unique among all other nations. He stated this principle applies to economic power as it does to political power. Lee contended that antitrust laws may be properly described as federalism for the economy.

Lee said that hearing is focused on what may prove the seminal antitrust case of the 21st Century that may define the terms of competition and innovation in the U.S.’ dynamic economy for years and decades to come. He said unlike some of his House colleagues, he has no interest in staging a political spectacle to attack, condescend, and talk over witnesses. Lee remarked naïve though it may be in 2020, he said his hope is that by looking at this specific question, the subcommittee can have a serious and frank conversation about the state of competition in digital markets. He declared that online advertising is an incredibly complex business, one that touches every single person on the internet.

Lee explained the technologies that connect publishers and advertisers have evolved rapidly over the last decade, and he expansion of online advertising has facilitated an explosion of online content by allowing even the smallest website owner to monetize the content they produce. He said small and local businesses have also benefitted from being able to quickly and easily promote their businesses without any of the same capital investments that would have been required just a few decades ago. Lee admitted that at the same time, this growth and expansion has been largely consolidated onto a single platform, Google’s online ad business. He said that as business has grown, so, too, have complaints that Google, which operates both the ad selling and ad buying platforms and then sells its own inventory through those platforms has given rise to conflicts of interest and claims it has rigged online ad auction technology to favor its own interests and protect its own market share. Lee said whether this is true or not matters because so many businesses depend upon digital advertising to market their products or to monetize the content they produce. Web users in turn benefit from free online content and being connected to relevant businesses in a way that helps to make optimal business decisions. Lee said, simply put, markets function better when businesses thrive, and consumers are informed. He asserted ideally online advertising helps accomplish this, but, if, on the other hand, online advertising has been monopolized and constrained by opaque pricing and exclusionary conditions, everyone loses to that degree. Lee added that Google and other big tech companies have been accused of other bad acts unrelated to antitrust or competition, and he said he has repeatedly expressed his concern about anti-conservative bias by these firms. He pledged to continue to pursue these concerns but added that while his concerns about anti-conservative bias may have implications for antitrust like market power, today’s hearing is not fundamentally about those concerns.

Ranking Member Amy Klobuchar (D-MN) explained

• We are not having this hearing because Google is successful. Google is successful. I just used it on my way here. Or because Google is big. That’s not why,from my perspective, we’re having this hearing. We are having it because even successful companies, even popular companies, and even innovative companies are subject to the laws of this country including our antitrust laws. 
• We are all successful when we make sure that our economy is strong and our economy is working better. But the law can’t be blinded by Google’s success or its past innovations if the company in its zeal to achieve greater success crosses a line into anticompetitive behavior. It’s our job to regulate it. It’s that simple. So we’re going to touch on issues, I hope, today of competition, technological innovation, the use of personal data. These are some of the defining issues, as the chair has said, defining issues of our time and I personally think, as we go into the months to come, this won’t just be about Google. This isn’t even just about the tech industry as much as I believe we need to change our laws and look at monopsonies and look at changing the burdens and making it so that our laws are as sophisticated as the companies that now occupy our economy.

Klobuchar asserted:

• I think we need to do all that and I think it should be a huge priority going into the year. But right now as the chairman mentioned, we are focused on this issue today. Our society has never been more dependent on this technology than we are now in the midst of this global pandemic. As I noted, not just Google, the pandemic has forced a bunch of small businesses to close their doors and the five largest tech companies continue to thrive to the point where they briefly accounted for nearly 25% value of the entire S&P 500 stock index just a few weeks ago.
• Again, I don’t quarrel with their success, but we have to start looking at do our laws really match that situation. And even if the original intent when these companies started as start-ups was to be innovative, which they’ve been, at what point do you cross the line so you squelch innovation and competition from other companies? We start with this, the ownership and use of data.
• The powerful companies that provide us with these technologies are also collecting personal information. We know that. They know who our friends are, they know the books we read, where we live, whether we’ve graduated from college, income levels, race, how many steps we took yesterday. The chairman and I share an interest in this. How long we’ve stayed where we are. Machine learning analyzes troves of personal data, allowing our firms to discern even more sensitive information about us, our medical conditions, political, religious views and even preferences that we don’t even know we have. And why would companies do all of this? Well, put simply, to target us with digital advertisements. There’s really no other reason. It is a capitalist society. That’s what they do.

Klobuchar stated

• Now, Google makes more money doing that than any company in the world, hands down, by leveraging its unmatched access to consumer data gained through its existing dominance in online and mobile search, mobile operating systems, Android, email, Gmail, online and mobile video, YouTube, browsers, Chrome, mobile mapping apps, Google maps and ad technology.
• So, this ad technology ecosystem, known as the ad tech stack, consists of advertisers on one side and publishers on the other. So let’s look at these two sides. On the advertising side Google controls access to the huge number of advertisers that place ads on Google search which is nearly 90% of the search market and has unparalleled access to data as I described. On the publisher side, Google has privileged access to ad data to inform its bidding strategies. And then it also effectively controls the process, the ad auction process, that gets an advertiser’s ad to be put on a publisher’s site. Google dominates all the markets for services on both sides of the ad/tech stack, the publisher side and the advertising side, and I hope that will be a lot of our focus today. Research has suggested that Google may be taking between 30 and 70 percent of every advertising dollar spent by advertisers using its services depriving publishers of that revenue. Who are the publishers? They’re content producers. They’re things like the Minneapolis Star Tribune, they depend on revenue, so many of our content producers, our news producers do to get by.  
• And to me, given that my dad was a journalist, to me this is one of the key elements here because if you have unfairness in how that ad echo system is going, then you’re depriving these news organizations at a time when the first amendment is already under assault of the revenue that they need to keep going. So whether it’s happening, and we don’t know all of the details at the Department of Justice right now, this could be the beginning of a reckoning for our antitrust laws to start looking at how we’re going to grapple with the new kinds of markets that we see across the country. It would help answer the question whether our federal antitrust laws are able to restrain the business conduct of even the largest, most successful companies in the world. When you think of the breakup of AT&T, that was our last big thing that happened in the antitrust area. Really big thing. What did that lead to? Lower prices, more competition. It really worked. But we’re not able to do this right now.
• And my hope is that we’re getting the start and the Justice Department, that things are going on at the FTC. But to really do that, they’re going to do resources to take on the legions of lawyers at the companies and that’s my first goal. What can we do for enforcement? My second, what do we have to do to make the laws work better, to look at some of the deals that have already been made? The third is what are the remedies? Do they make a difference in changing the behavior and allowing competition? I literally don’t have personal grudges against these companies like sometimes the president has expressed about various companies. I don’t. I just want our capitalist system to work. I want it to work. And to have it work you simply can’t have one company dominating areas of an industry. Our Founding Fathers started this country in part because they were rebelling against monopoly power.

Google Global Partnerships and Corporate Development President Donald Harrison stated

• Online advertising prices in the U.S. have fallen more than 40% since 2010. According to the Progressive Policy Institute, “for every $3 that an advertiser spends on digital advertising, they would have to spend $5 on print advertising to get the same impact.” As a result, the share of U.S. GDP going to advertising in media has declined roughly 25% in recent years. The benefits of these lower prices ow directly to American businesses and consumers.
• We help businesses grow from advertising on (1) our own sites, and (2) other publishers’ sites.
  • Advertising on Google sites and apps
  • A wide range of businesses, including many small firms, advertise on our sites and apps like Google Search and YouTube. That’s where we earn the majority of our advertising revenue.
  • We show no ads — and make no money — on the vast majority of searches. We show ads only on a small fraction of searches, typically those with commercial intent, such as searches for “sneakers” or “toaster.” We face intense competition for these types of searches. An estimated 55 percent of Americans start product searches on Amazon, not Google. And many online shoppers use Walmart, eBay, and other sites. For travel searches, many go to Expedia, Kayak, Orbitz, and TripAdvisor. Facebook, Bing, Twitter, Snap, Pinterest, and many more compete with us for a range of commercial advertisements.
  • Advertising on non-Google sites and apps
  • In addition to ads on our own properties, Google also helps businesses advertise on a wide range of other websites and mobile applications, known as “publishers.” We offer technology that (1) helps advertisers buy ad space — known as the “buy side,” and (2) helps publishers sell their ad space — known as the “sell side.” This technology is often referred to as “ad tech.”
  • The ad tech portion of our business accounts for a small fraction of our advertising revenue. And we share the majority of that revenue with publishers. Publishers get paid for every impression — each time an ad is viewed — even if the ad is never clicked. Of the revenue we retain, a large portion goes to defray the costs of running this complex and evolving business.
• A crowded and competitive ad tech ecosystem
  • The ad tech space is crowded and competitive. Thousands of companies, large and small, work together and in competition with each other, each with different specialties and technologies. We compete with Adobe, Amazon, AT&T, Comcast, Facebook, News Corporation, Oracle, and Verizon, as well as leaders like Index Exchange, Magnite, MediaMath, OpenX, The Trade Desk, and many more.
• Google shares billions of dollars with publishers, more than the industry average.
  • Even as online ad prices and ad tech fees have fallen, benefiting businesses and consumers, Google has helped publishers make more money from ads. In 2018, we paid more than $14 billion to the publishing partners in our ad network — up from $10 billion in 2015.
  • In 2019, when both advertisers and publishers used our tools, publishers kept over 69 percent of the ad revenue — more than the industry average. And when publishers use our tools to sell directly to advertisers, they keep even more of the revenue.

Chalice Custom Algorithms Chief Executive Officer Adam Heimlich contended

• In 2016, Google combined search and display data, breaking a promise made to American regulators. Google also broke the industry’s privacy standard by linking consumers’ names, from Gmail, to the ID numbers assigned to browsers for exchange transactions.
• Continuously, from 2016, Google came up with new ways to pollute the exchange ecosystem they’d previously seemed to embrace. Pollution came in the form of restrictions and exclusions that made the open web less efficient for buyers and sellers.
• Google took YouTube, Google’s most valuable display property, off the exchanges, while making it available through an exclusive “pipe” from Google’s exchange bidder. Google excluded data providers from its websites and measurement partners from its platforms. Google’s selling platform denied publishers’ demand for a unified, exchange- vs-exchange action. To keep publishers from getting rid of Google’s software, Google funnels exclusive display demand from its search platform through it. Google weaponized new privacy laws to restrict advertisers’ and publishers’ access to their own ad data in Google tools.
• Google tightened ties among its products until the shady broker was no longer one among a set of competitors: Google became the only display company not hobbled by the exclusions and restrictions it’d placed on everyone else. The power to interoperate among buy-side, sell-side and measurement software went from being a feature of the exchange ecosystem to a capability exclusive to Google.
• Now, progress on innovation is squeezed to the margins of the industry, and new adtech is rare. The majority of advertisers have stagnated or regressed.
• There’s more at stake than most people realize. The more efficient the ad market, the more likely it is that superior new products will find customers and thrive. When the ad exchanges function properly, the size advantage from flooding the airwaves is offset by quieter voices speaking directly to whoever’s most open to any given improvement. It tilts the incentives of every business toward innovation.
• Google is dominating display by breaking interoperability and subtracting the efficiencies of a symmetrical market. Pre-2016, under intense competitive pressure, ad exchanges were becoming more transparent and privacy-respectful as the ecosystem grew. Google could have coped with these developments without using its market power destructively: There was nothing to stop Google from exiting the arena or competing within its open standards. Whether or not Google competes with other big tech firms is irrelevant to the harms they’ve caused publishers, measurement companies, platforms and small businesses like mine in the ~$50B open web display market.
• It was efficient when publishers, platforms, measurement tools and service providers all interoperated. Innovators of a great new product or service could access a global marketplace of thousands of buyers and sellers quickly at low cost. Small businesses with great ideas had a shorter ramp to success.
• Now, funding for new adtech startups has been drying up and the pace of innovation slowed down. The number-one concern I hear from potential investors is Google’s domination of the market my company operates in. For years, they’ve been breaking existing efficiencies and preventing the development of new ones.
• Many expect Google to successfully mislead regulators about its conduct in the open web, and its harmful effects. I’m grateful for the opportunity to help scrutinize Google’s claims. For the sake of competition, the innovation competition drives and the benefits innovation brings, Google should be forced to either exit the ad exchange market or compete within its open standards.

Omidyar Network Beneficial Technology Senior Advisor David Dinielli stated

• [U]nder current law, there is a strong case to be made that Google has illegally monopolized, or illegally maintained a monopoly in, the market for digital advertising on what is termed the “open web,” i.e., advertising that appears on websites as users traverse the internet.
• Through a variety of conduct described herein, Google now occupies every layer the “ad tech stack”—a term that describes the various functions that serve to match website publishers with the advertisers who seek to deliver targeted ads to consumers who are viewing those websites. In antitrust parlance, website publishers provide the “supply” of ad space, and advertisers create the “demand” for that space. The market for this sort of advertising is unique and appears on its face dysfunctional from an antitrust standpoint: Google—through its various ad tech tools – represents both the suppliers and the purchasers and also conducts the real-time auctions that match buyers and sellers and determine the price. Moreover, Google appears to have engaged in a multitude of anti-competitive acts, such as making the ad space on YouTube (which it owns) available exclusively through its own ad tech tools, that were designed to cement its lock on this market and exclude competitors. As my co-author and I said in a recent paper about the digital advertising market, “all roads lead through Google.”
• Google has asserted that the digital advertising market is vibrant and competitive, and that publishers and advertisers have many options in buying and selling advertising space. Of course, it is not surprising that there are other some other actors in this market, given the significant profits to be made. But a recent report from the United Kingdom’s Competition and Markets Authority (“CMA”) explained, based on an extensive factual investigation, that Google holds a dominant position—as high as 90%—in every layer of the ad tech stack. Moreover, a monopolization case in the U.S. does not require proof that the alleged monopolist hold 100% of a particular market—which would make it literally a monopolist—but rather that it has “monopoly power” and that it has engaged in anticompetitive conduct to obtain or maintain that power rather than competing on the merits. Google’s conduct as described herein surely fits that standard.
• Digital advertising is complex and the tools and processes that allow for near- instantaneous placement of ads every time we open a web page can seem opaque. But the consequences of unchecked power in this market are significant. If advertisers are paying higher prices than would obtain in a well-functioning market, economic theory teaches that those higher advertising prices will be passed down to consumers in the form of increased prices for goods and services. If website publishers, such as local news outlets, are being paid less than they should for their supply of advertising space, they will invest less in content creation and news gathering. Google is the winner and the rest of us are the losers. This committee therefore is right in investigating if current antitrust law is up to the task of ensuring competition in digital advertising and exploring possible legislative fixes if it is not.

Netchoice Vice President and General Counsel Carl Szabo stated

• Among the many Google products and services that consumers love are Google Search, YouTube, Gmail, and Google Drive—all amazingly useful, and all free. To many critics of “Big Tech,” however, when consumers enthusiastically choose these free-of-charge products, it amounts to proof that something must be wrong. Every successful new service or product that proves a winner with consumers is deemed by these critics to be just another antitrust violation.
• But Google’s greatest successes are being won in markets with the greatest competition. In the digital ads market, for example, Google faces fierce competitive pressure. You would never know that listening to the critics.
• For starters, Google is no monopoly. It’s wildly popular with consumers, yes. And true, it’s also very popular with investors. But the company faces competition from all corners, including from other tech platforms such as Facebook and Amazon (which are simultaneously and thus illogically also dubbed monopolies).
• Far from being evidence of any unlawful conduct, Google’s success under these conditions offers abundant proof that it is meeting and exceeding the fundamental test that has been the bedrock of antitrust law for the last 40 decades: are consumers benefitting? There can be little doubt on this point, for Google’s users vote daily with their choices. In order to dismiss this as irrelevant, the critics are now arguing that antitrust enforcement should simply abandon the consumer welfare standard, enabling them to attack “bigness” per se. This would undermine the very purpose of antitrust law since its inception more than a century ago.

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